Johnson v. Parshley

Opinion by Mr. Chief Justice Eakin. On appeal the defendants present but two questions, viz.: (1) That by reason of respondent’s sale of the [449] restaurant the appellants cannot be placed in statu quo. (2) A partial rescission of an entire contract cannot be had. It was conceded throughout the trial that the original lease stipulated that Kiesendahl shall not sublet the premises without the consent of the owner, that he was a stockholder and a managing officer of the Dragon Restaurant Company, and that the sublease was consented to by Mrs. Hamilton for that reason, and Kiesendahl testified that he was authorized by Dr. Wo to sell the restaurant, and did participate in the negotiations for the sale, and on January 7, 1909, agreed in writing with Johnson, with a view of a sale to him of the restaurant, that he was the owner of the lease of the premises, and, as Johnson was desirous of buying the restaurant and having transferred the lease to him, he would aid him in making the purchase, and that “whereas, six hundred ($600.00) has been advanced by the present owner of the said Dragon Restaurant upon the lease for the last three (3) months of the said lease; and, now in case the said Johnson shall purchase the said restaurant, and have the lease transferred to him, then and in that event he agrees to pay and return to the present owner of the said Dragon Restaurant, the said six hundred ($600.00) dollars, upon the terms and conditions heretofore agreed upon.” It was for this sum that Johnson gave the six promissory notes mentioned, and the whole negotiations were conducted and consummated upon the basis of this preliminary agreement. And it was understood between Johnson, Idleman, and defendant Parshley, acting for Dr. Wo, when -the notes were delivered that Parshley would see that the lease would be transferred the next day. The lease was not transferred. Dr. Wo had no interest therein that was transferable by him, and it was only through Kiesendahl and Mrs. Hamilton that Johnson could acquire a right to the possession of [450] the premises. Therefore the notes were without consideration, and their cancellation does not depend upon a rescinding of the contract of sale, or that defendants shall be placed in statu quo. The decree is affirmed. Affirmed.